Proceeds of Crime Act 2002 powers to execute warrant and orders: revised code of practice consultation

Consultation

1. Introduction

The Proceeds of Crime Act 2002 (“POCA/”) contains a comprehensive package of measures to recover the proceeds of crime. This includes powers to require individuals and organisations to provide information that is of significant value to an investigation, or to search for such information under Part 8 of POCA/.

The revised Code, issued under section 410 of POCA/, provides guidance on the exercise by Proper Persons of functions conferred by Chapter 3 of Part 8 of POCA/ – i.e., the powers to execute investigatory orders and warrants, namely:

• Production orders (section 380);
• Orders to grant entry (section 382);
• Search warrants (section 387);
• Customer information orders (section 397); and
• Account monitoring orders (section 404).

These functions are necessary to enable the proper person to fully exercise their powers under Part 3 of Chapter 8 of POCA/. However, they are subject to certain limits and conditions and accordingly, section 410(1) requires that the Scottish Ministers make a code of practice in connection with the exercise of these powers by proper persons in Scotland.

The code of practice is intended to ensure that the responsibilities of proper persons are clearly set out and accessible.

Under section 412 of POCA/, “proper person” means:

• in relation to a confiscation investigation or a money laundering investigation –

  a) a constable of the Police Service of Scotland;

  b) an officer of HM/ Revenue and Customs; or

  c) an immigration officer.

• in relation to a civil recovery investigation, a detained cash investigation, a detained property investigation, a frozen funds investigation or a cryptoasset investigation it means the Scottish Ministers, or a person named by them.

2. Consultation requirement

Section 410 (1) of POCA/ requires the Scottish Ministers to publish and consult on a draft of any new or revised Code of Practice. Accordingly, they seek views on this revised Code which is further described below. A period of six weeks is available for responses. The Code will then be subject to Parliamentary approval before coming into effect.

A revision of this Code is required to reflect amendments made to POCA/ by the Economic Crime and Corporate Transparency Act 2023 (the 2023 Act). The 2023 Act introduced a new “cryptoasset investigation” by inserting new subsection (3D) into section 341 of Part 8 of POCA/, for the purposes of Chapter 3C, 3D, 3E or 3F of Part 5 (which are not subject to the Code).

The revised Code therefore replaces the existing section 410 Code (which came into effect on 28 November 2019, following consultation and parliamentary approval). Given that this Code builds on earlier versions, and/or reflects the provisions of similar Codes, proper persons, as defined at section 412 of POCA/, will already be reasonably familiar with the procedures and safeguards set out.

Any failure to comply with a provision of the Code will not, by reason of that failure alone, give rise to any criminal or civil liability for the proper person concerned. However, the Code is admissible as evidence in any criminal or civil proceedings.

3. How to Respond

The consultation is in respect of the Code providing guidance on the exercise of the functions, rather than the powers conferring the functions. Respondents should be aware of this distinction in making specific comments and suggestions. The Code is intended to be self-explanatory and so we would welcome views on any passages that are confusing, ambiguous or lacking in clarity. In particular, we would welcome answers to the following questions:

Question 1

The draft Code will affect how proper persons in Scotland exercise their functions under Chapter 3 of Part 8 of POCA/. Do you have any comments to make in relation to the practical guidance contained within the Code?

Please give us your views

Question 2

Do you feel that the draft Code could have an adverse impact on you or your organisation?

Yes / No / Unsure

Please give us your views

Question 3

Do you feel that the draft Code provides adequate guidance to a proper person on how to discharge their functions?

Yes / No / Unsure

Please give us your views

Question 4

Is there anything missing from the draft Code that should be added? (If so, please specify.)

Yes / No / Unsure

If so, please specify

Question 5

Is there anything in the draft Code that should be deleted or changed? (If so, please specify.)

Yes / No / Unsure

If so, please specify

4. Responding to this Consultation

We are inviting responses to this consultation by 15 December 2023.

Please respond to this consultation using the Scottish Government’s consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at https://consult.gov.scot/safer-communities/proceeds-of-crime-act-2002-code-of-practice-2.

You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 15 December 2023.

If you are unable to respond using our consultation hub, please complete the Respondent Information Form to:

5. Handling your response

If you respond using the consultation hub, you will be directed to the About You page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to published. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.

All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

If you are unable to respond via Citizen Space, please complete and return the Respondent Information Form included in this document.

To find out how we handle your personal data, please see our privacy policy:

http://www.gov.scot/privacy/

6. Next steps in the process

Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at http://consult.gov.scot. If you use the consultation hub to respond, you will receive a copy of your response via email.

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so. An analysis report will also be made available.

7. Comments and complaints

If you have any comments about how this consultation exercise has been conducted, please send them to the contact address above or to george.dickson@gov.scot.

8. Scottish Government consultation process

Consultation is an essential part of the policy-making process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.

You can find all our consultations online: http://consult.scotland.gov.uk. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online, by email or by post.

Consultations may involve seeking views in a number of different ways, such as public meetings, focus groups, or other online methods such as Dialogue (www.ideas.gov.scot).

Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.